THEORY & THEME

WHY HAVE A CASE

THEORY?
YOUR CASE THEORY CONTROLS
Your discovery & trial preparation
Jury selection
Whats said in your opening statement
What is asked on direct and cross examination
Whats said in your closing argument
What will be in your proposed jury charge
 WHY HAVE A CASE
THEORY?
EVERYTHNG WE DO AT TRIAL WILL
BE CONTROLED BY YOUR CASE
THEORY
WHAT IS A CASE THEORY?
A CASE THEORY CONSISTS OF--

LEGAL THEORY
FACTUAL THEORY
PERSUASIVE THEORY

EQUALS CASE THEORY

 LEGAL THEORY
THE LAW THAT ENTITLES YOU TO
WIN
JURY INSTRUCTIONS
STATUTUES
CASE LAW
 FACTUAL THEORY
WHAT HAPPENED IN THE CASE
WAYS OF GETTING A HANDLE ON
THE FACTS
CHRONOLOGY
PROOF CHART
FACTS NOT CONCLUSIONS
INFERENCES THAT CAN BE DRAWN
FROM THE FACTS
 FACTUAL THEORY
IF TRUE, WHAT ELSE MUST BE TRUE
HARD FACTS VERSUS SOFT FACTS
THE MOVIE SCRIPTWHAT
WOULD/SHOULD HAPPEN IN THIS
SITUATION
MOTIVESWHY DID A PERSON ACT IN
THE WAY CLAIMED
COMMON SENSEDOES THE STORY
COMPORT WITH COMMON SENSE
 PERSUASIVE THEORY
WHY SHOULD YOU WIN AS A
MATTER OF FAIRNESS AND JUSTICE
WANT TO IDENTIFY THE HERO AND
VILLIAN IN THE CASE
SEE PERDUE EXCERPT POSTED ON
WEBSITE
THE GRANDMOTHER TEST
SUMMARIZE YOUR CASE IN ONE
PARAGRAPH
Using simple, powerful language
Incorporating your best facts
Explicitly or implicitly refuting your worst
facts
This is a case about . . . .
THE GRANDMOTHER TEST
YOUR GRANDMOTHER, AFTER
HEARING THE PARAGRAPH, WILL
SAY YOU SHOULD WIN
 TEN COMMANDMENTS
OF A GOOD CASE THEORY
1. SHORT
2. SIMPLE
3. SATISFIES LEGAL REQUIREMENTS
4. CONSISTENT WITH FACTS
5. ENOTIONALLY APPEALING
PLACES MORAL BLAME AND
APPEALS TO COMMON VALUES
 TEN COMMANDMENTS
6. EXPLAIN MOTIVES
7. TELLS A STORY
8. USE IMPACT WORDS AND PHRASES
9. LIMITED TO ONE THEORY
10. YOU MUST BELIEVE IT
 THEME
THE ONE SENTENCE DISTILLATION
MAKE SURE IT CANNOT BE FLIPPED
 HOW TO DO IT
MANY METHODS. THIS IS JUST ONE
MODEL
WILL BE DOING NEXT WEEK W/
STATE V. ONEIL
RESEARCH THE LAW (Done for us here)
SELECT YOUR BEST __ GOOD FACTS
AND YOUR WORST __ BAD FACTS
 HOW TO DO IT
BRAINSTORM ABOUT GOOD FACTS AND
BAD FACTS
FACTS--NOT CONCLUSIONS
DONT ARGUE AT THIS POINTCUTS OFF
CREATIVITY
IDENTIFY OUR (ARBITRARY #) BEST &
WORST FACTS
NOW WE CAN ARGUE ABOUT THE FACTS
Is it admissible
Is it understandable
 HOW TO DO IT
Is it believable
Is it a hard or soft fact
Do we need to draw any inferences
Are the inferences reasonable
If this fact is true what other facts must be true (are they?)
Is it consistent with common sense
Does it square with the motives we would expect
Will it be countered by other evidence
In short, why should the judge or jury believe the best
facts & disbelieve the worst facts
 HOW TO DO IT
APPLY THE GRANDMOTHER
DEVELOP A THEMEA ONE SENTENCE
DISTILLATION OF YOUR CASE THEORY
MAKE SURE YOUR THEME CANNOT BE
FLIPPED